Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3919)

MD CONCRETE OPERATIONS PTY LTD AS TRUSTEE FOR MD OPERATING UNIT TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 27 SEPTEMBER 2022

Application for approval of the MD CONCRETE OPERATIONS PTY LTD AS TRUSTEE FOR MD OPERATING UNIT TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MD CONCRETE OPERATIONS PTY LTD AS TRUSTEE FOR MD OPERATING UNIT TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union, the applicant sought approval for a new enterprise agreement between MD Concrete Operations Pty Ltd as trustee for MD Operating Unit Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The decision was made in the Fair Work Commission. The applicant, an authorised union, sought to have the agreement approved as a new enterprise agreement under the Fair Work Act 2009. The union argued that the agreement was appropriate and fair, while the employer contested certain provisions, primarily on grounds of complexity and potential operational impacts.

The legal issues before the Commission involved determining whether the agreement was appropriate and fair in accordance with the Fair Work Act. This required consideration of the agreement's compliance with the Act's requirements, the fairness of its provisions, and whether it met the criteria for approval as set out in the Fair Work Regulations 2009. The Commission needed to assess whether the agreement provided for a fair and efficient workplace, without unduly disadvantaging either party. It also had to consider whether any provisions were inconsistent with the Act or regulations.

The Commission examined the provisions of the agreement and assessed their implications for both parties. It found that while some provisions raised legitimate concerns from the employer, the overall agreement provided a fair and efficient framework for the workplace. The Commission concluded that the benefits of the agreement outweighed any potential disadvantages, and that the agreement was appropriate and fair. As such, it granted approval for the agreement to be registered, making it legally binding on both parties. The decision provided clarity for future negotiations and highlighted the importance of considering both parties' interests in enterprise agreements.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established